Judge Potani recuses himself in election cases: Malawi poll outcomes faces setback

High Court Judge Healey Potani on Thursday recused himself from handling matters of of Malawi’s controversial presidential elections, delaying of recount of ballots or whether elections results can be declared by Friday.

Some of the most brilliant advocates on show were Modecai Msisha and Gustave Kaliwo representing the Malawi Congress Party (MCP) and Sam Tembenu, Kalekeni Kaphale, Pempho Likongwe supported by Frank Mbeta, Lusungu Gondwe, Patrick Mpaka, Felix Tandwe, Julius Nyambo, Chancy Gondwe and many others representing DPP.

As the hearing progressed, lawyer Gustave Kaliwo requested the Judge to recuse himself of the case on the basis that in the Dr Jessie Kabwira vs MEC case, he recused himself because Potani’s younger brother, Harris, works at Malawi Electoral Commission (MEC) as deputy chief elections officer responsible for operation

Kaphale: The case is about statutory interpretation

Kaphale: The case is about statutory interpretation

“Justice must be seen to be done. You found it as a basis for recusal in one matter. It doesn’t look well to continue in this one,” said Kaliwo.

Lawyer representing DPP Kalekeni Kaphale attempted to downplay Kaliwo’s request for the judge to recuse himself of the case.

“We know the independence of the court. We do not have a problem. In fact it should have been us to complain. And if it was us, we would have done it in chambers not here. The question is whether the court has a material interest. The brother is not a commissioner. The respondents are the commissioners not employees. The case is about statutory interpretation. We don’t believe the court will twist the statute ‘in favour of your brother.”

Taking his turn, Judge Potani admitted having recused himself in the earlier matter and said he took this case “out of necessity.”

“I considered about whether I should carry on. I considered urgency seriousness and nature of the matter. However justice must be seen to be done. I succumb to the request and I hope the matter will be heard in soonest. Tonight or tomorrow depending on availability of another judge,” he said.

Justice Potani said he had to reluctantly recuse himself.

Court orders and injunctions have flown back and forth ever since, as supporters of President Joyce Banda and other parties claimed serious irregularities. Banda’s supporters fear that DPP president Peter Mutharika, the 74-year-old brother of late former president Bingu wa Mutharika, may be attempting to steal power.

Justice Potani admitted that the injunctions were not handled properly.

Before recusing himself, Justice Potani was expected to rule on whether the Malawi Electoral Commission should be allowed to conduct a recount of the ballots.

Lawyers Patrick Mpaka, Felix Tandwe and Jai Banda, representing opposition United Democratic Front (UDF) presidential candidate Atupele Muluzi who joined the matter as an interested party, proposed that the matter be certified by the Chief Justice to be heard by a three judge panel as a constitutional matter.

Potani, citing laws and what the Chief Justice Anastasia Msosa had said on the matter, dismissed that application on the basis that there was nothing in the matter to do with application or interpretation of the Constitution.

The different cases have been consolidated to make one case. MCP is demanding recount of the votes following alleged irregularities and fraud during voting but DPP, whose candidate was leading according to unofficial results, is rejecting the recount and are demanding that an announcement of the winner be made first.

High Court has since appointed Justice Kenyatta Nyirenda to take over Potani’s task.

Boniface Dulani, a politics lecturer at the University of Malawi, said :“We are likely to see a lot more court action,” he said. “We probably won’t have resolution for maybe a month or so. The instability isn’t good for the country.”
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